| 179 |
Be It Enacted by the
Legislature of the State of Florida: |
| 180 |
|
| 181 |
Section
1. Section 468.431, Florida Statutes, is amended |
| 182 |
to read: |
| 183 |
468.431 Definitions.--
As used in this part: |
| 184 |
(1) "Community
association" means a residential |
| 185 |
homeowners' association in
which membership is a condition of |
| 186 |
ownership of a unit in a
planned unit development, or of a lot |
| 187 |
for a home or a mobile
home, or of a townhouse, villa, |
| 188 |
condominium, cooperative,
or other residential unit which is |
| 189 |
part of a residential
development scheme and which is authorized |
| 190 |
to impose a fee which may
become a lien on the parcel. |
| 191 |
(2) "Community
association management" means any of the |
| 192 |
following practices
requiring substantial specialized knowledge, |
| 193 |
judgment, and managerial
skill when done for remuneration and |
| 194 |
when the association or
associations served contain more than 10 |
| 195 |
50 units or have an
annual budget or budgets in excess of |
| 196 |
$100,000: controlling or
disbursing funds of a community |
| 197 |
association, preparing
budgets or other financial documents for |
| 198 |
a community association,
assisting in the noticing or conduct of |
| 199 |
community association
meetings, and coordinating maintenance for |
| 200 |
the residential
development and other day-to-day services |
| 201 |
involved with the
operation of a community association. A person |
| 202 |
who performs clerical or
ministerial functions under the direct |
| 203 |
supervision and control of
a licensed manager or who is charged |
| 204 |
only with performing the
maintenance of a community association |
| 205 |
and who does not assist in
any of the management services |
| 206 |
described in this
subsection is not required to be licensed |
| 207 |
under this part. |
| 208 |
(3) "Community
association management firm" means a |
| 209 |
corporation,
limited liability company, partnership, trust, |
| 210 |
association,
sole proprietorship, or other similar organization |
| 211 |
engaging
in the business of community association management for |
| 212 |
the
purpose of providing any of the services described in |
| 213 |
subsection
(2). |
| 214 |
(4)(3) "Community
association manager" means a natural |
| 215 |
person who is licensed
pursuant to this part to perform |
| 216 |
community association
management services. |
| 217 |
(5)(4) "Council"
means the Regulatory Council of Community |
| 218 |
Association Managers. |
| 219 |
(6)(5) "Department"
means the Department of Business and |
| 220 |
Professional Regulation. |
| 221 |
Section
2. Section 468.4315, Florida Statutes, is amended |
| 222 |
to read: |
| 223 |
468.4315 Regulatory
Council of Community Association |
| 224 |
Managers.-- |
| 225 |
(1) The
Regulatory Council of Community Association |
| 226 |
Managers is created within
the department and shall consist of |
| 227 |
seven members appointed by
the Governor and confirmed by the |
| 228 |
Senate. |
| 229 |
(a) Five
members of the council shall be licensed |
| 230 |
community association
managers, one of whom may shall be a |
| 231 |
community association
manager employed by a timeshare managing |
| 232 |
entity as described in ss.
468.438 and 721.13, who have held an |
| 233 |
active license for at
least 5 years. The remaining two council |
| 234 |
members shall be residents
of this state, and must not be or |
| 235 |
ever have been connected
with the business of community |
| 236 |
association management,
and shall not be prohibited from serving |
| 237 |
because
the member is or has been a resident or board member of |
| 238 |
a
community association. |
| 239 |
(b) The
Governor shall appoint members for terms of 4 |
| 240 |
years. Such members shall
serve until their successors are |
| 241 |
appointed. Members'
service on the council shall begin upon |
| 242 |
appointment and shall
continue until their successors are |
| 243 |
appointed. |
| 244 |
(2) The
council may adopt rules relating to the licensure |
| 245 |
examination, continuing
education requirements, continuing |
| 246 |
education providers, fees,
and professional practice standards |
| 247 |
to assist the department
in carrying out the duties and |
| 248 |
authorities conferred upon
the department by this part. |
| 249 |
(3)
To the extent the council is authorized to exercise |
| 250 |
functions otherwise
exercised by a board pursuant to chapter |
| 251 |
455, the provisions of
chapter 455 and s. 20.165 relating to |
| 252 |
regulatory boards shall
apply, including, but not limited to, |
| 253 |
provisions relating to
board rules and the accountability and |
| 254 |
liability of board
members. All proceedings and actions of the |
| 255 |
council are subject to the
provisions of chapter 120. In |
| 256 |
addition, the provisions
of chapter 455 and s. 20.165 shall |
| 257 |
apply to the department in
carrying out the duties and |
| 258 |
authorities conferred upon
the department by this part. |
| 259 |
(4) The
council may establish a public education program |
| 260 |
relating
to professional community association management. |
| 261 |
(5) Members
of the council shall serve without |
| 262 |
compensation
but are entitled to receive per diem and travel |
| 263 |
expenses
pursuant to s. 112.061 while carrying out business |
| 264 |
approved
by the council. |
| 265 |
(6) The
responsibilities of the council shall include, but |
| 266 |
not be
limited to: |
| 267 |
(a) Receiving
input regarding issues of concern with |
| 268 |
respect
to community association management and recommendations |
| 269 |
for
changes in applicable laws. |
| 270 |
(b) Reviewing,
evaluating, and advising the division |
| 271 |
concerning
revisions and adoption of rules affecting community |
| 272 |
association
management. |
| 273 |
(c) Recommending
improvements, if needed, in the education |
| 274 |
programs
offered by the division. |
| 275 |
Section
3. Section 468.432, Florida Statutes, is amended |
| 276 |
to read: |
| 277 |
468.432 Licensure
of community association managers and |
| 278 |
community
association management firms; exceptions.-- |
| 279 |
(1) A
person shall not manage or hold herself or himself |
| 280 |
out to the public as being
able to manage a community |
| 281 |
association in this state
unless she or he is licensed by the |
| 282 |
department in accordance
with the provisions of this part. |
| 283 |
However, nothing in this
part prohibits any person licensed in |
| 284 |
this state under any other
law or court rule from engaging in |
| 285 |
the profession for which
she or he is licensed. |
| 286 |
(2) As
of January 1, 2009, a community association |
| 287 |
management
firm or other similar organization responsible for |
| 288 |
the
management of more than 10 units or a budget of $100,000 or |
| 289 |
greater
shall not engage or hold itself out to the public as |
| 290 |
being
able to engage in the business of community association |
| 291 |
management
in this state unless it is licensed by the department |
| 292 |
as a
community association management firm in accordance with |
| 293 |
the
provisions of this part. |
| 294 |
(a) A
community association management firm or other |
| 295 |
similar
organization desiring to be licensed as a community |
| 296 |
association
management firm shall apply to the department on a |
| 297 |
form
approved by the department together with the application |
| 298 |
and
licensure fees required by s. 468.435(1)(a) and (c). Each |
| 299 |
community
association management firm applying for licensure |
| 300 |
under
this subsection must be actively registered and authorized |
| 301 |
to do
business in this state. |
| 302 |
(b) Each
applicant shall designate on its application a |
| 303 |
licensed
community association manager who shall be required to |
| 304 |
respond
to all inquires from and investigations by the |
| 305 |
department
or division. |
| 306 |
(c) Each
licensed community association management firm |
| 307 |
shall
notify the department within 30 days after any change of |
| 308 |
information
contained in the application upon which licensure is |
| 309 |
based. |
| 310 |
(d) Community
association management firm licenses shall |
| 311 |
expire
on September 30 of odd-numbered years and shall be |
| 312 |
renewed
every 2 years. An application for renewal shall be |
| 313 |
accompanied
by the renewal fee as required by s. 468.435(1)(d). |
| 314 |
(e) The
department shall license each applicant whom the |
| 315 |
department
certifies as meeting the requirements of this |
| 316 |
subsection. |
| 317 |
(f) If
the license of at least one individual active |
| 318 |
community
association manager member is not in force, the |
| 319 |
license
of the community association management firm or other |
| 320 |
similar
organization is canceled automatically during that time. |
| 321 |
(g) Any
community association management firm or other |
| 322 |
similar
organization agrees by being licensed that it will |
| 323 |
employ
only licensed persons in the direct provision of |
| 324 |
community
association management services as described in s. |
| 325 |
468.431(3). |
| 326 |
(2) Nothing
in this part prohibits a corporation, |
| 327 |
partnership,
trust, association, or other like organization from |
| 328 |
engaging
in the business of community association management |
| 329 |
without
being licensed if it employs licensed natural persons in |
| 330 |
the
direct provision of community association management |
| 331 |
services.
Such corporation, partnership, trust, association, or |
| 332 |
other
organization shall also file with the department a |
| 333 |
statement
on a form approved by the department that it submits |
| 334 |
itself
to the rules of the council and the department and the |
| 335 |
provisions
of this part which the department deems applicable. |
| 336 |
Section
4. Subsections (2) and (4) of section 468.433, |
| 337 |
Florida Statutes, are
amended to read: |
| 338 |
468.433 Licensure
by examination.-- |
| 339 |
(2) The
department shall examine each applicant who is at |
| 340 |
least 18 years of age, who
has successfully completed all |
| 341 |
prelicensure education
requirements, and who the department |
| 342 |
certifies is of good moral
character. |
| 343 |
(a) Good
moral character means a personal history of |
| 344 |
honesty, fairness, and
respect for the rights of others and for |
| 345 |
the laws of this state and
nation. |
| 346 |
(b) The
department may refuse to certify an applicant only |
| 347 |
if: |
| 348 |
1. There
is a substantial connection between the lack of |
| 349 |
good moral character of
the applicant and the professional |
| 350 |
responsibilities of a
community association manager; and |
| 351 |
2. The
finding by the department of lack of good moral |
| 352 |
character is supported by
clear and convincing evidence; or |
| 353 |
3. The
applicant is found to have provided management |
| 354 |
services
requiring licensure without the requisite license. |
| 355 |
(c) When
an applicant is found to be unqualified for a |
| 356 |
license because of a lack
of good moral character, the |
| 357 |
department shall furnish
the applicant a statement containing |
| 358 |
its findings, a complete
record of the evidence upon which the |
| 359 |
determination was based,
and a notice of the rights of the |
| 360 |
applicant to a rehearing
and appeal. |
| 361 |
(d) The
council shall establish by rule the required |
| 362 |
amount of prelicensure
education, which shall consist of not |
| 363 |
more than 24 hours of
in-person instruction by a department- |
| 364 |
approved provider and
which shall cover all areas of the |
| 365 |
examination specified in
subsection (3). Such instruction shall |
| 366 |
be completed within 12
months prior to the date of the |
| 367 |
examination. Prelicensure
education providers shall be |
| 368 |
considered continuing
education providers for purposes of |
| 369 |
establishing provider
approval fees. A licensee shall not be |
| 370 |
required to comply with
the continuing education requirements of |
| 371 |
s. 468.4337 prior to the
first license renewal. The department |
| 372 |
shall, by rule, set
standards for exceptions to the requirement |
| 373 |
of in-person instruction
in cases of hardship or disability. |
| 374 |
(4) The
department shall issue a license to practice in |
| 375 |
this state as a community
association manager to any qualified |
| 376 |
applicant who successfully
completes the examination in |
| 377 |
accordance with this
section and pays the appropriate fee. |
| 378 |
Section
5. Section 468.436, Florida Statutes, is amended |
| 379 |
to read: |
| 380 |
468.436 Disciplinary
proceedings.-- |
| 381 |
(1) The
department shall investigate complaints and |
| 382 |
allegations
of a violation of this part or chapter 455, or any |
| 383 |
rule
adopted thereunder, filed against community association |
| 384 |
managers
or firms and forwarded from other divisions under the |
| 385 |
Department
of Business and Professional Regulation. After a |
| 386 |
complaint
is received, the department shall conduct its inquiry |
| 387 |
with
due regard to the interests of the affected parties. Within |
| 388 |
30 days
after receipt of a complaint, the department shall |
| 389 |
acknowledge
the complaint in writing and notify the complainant |
| 390 |
whether
or not the complaint is within the jurisdiction of the |
| 391 |
department
and whether or not additional information is needed |
| 392 |
by the
department from the complainant. The department shall |
| 393 |
conduct
an investigation and shall, within 90 days after receipt |
| 394 |
of the
original complaint or of a timely request for additional |
| 395 |
information,
take action upon the complaint. However, the |
| 396 |
failure
to complete the investigation within 90 days does not |
| 397 |
prevent
the department from continuing the investigation, |
| 398 |
accepting
or considering evidence obtained or received after 90 |
| 399 |
days,
or taking administrative action if reasonable cause exists |
| 400 |
to
believe that a violation of this part or chapter 455, or a |
| 401 |
rule of
the department has occurred. If an investigation is not |
| 402 |
completed
within the time limits established in this subsection, |
| 403 |
the
department shall, on a monthly basis, notify the complainant |
| 404 |
in
writing of the status of the investigation. When reporting |
| 405 |
its
action to the complainant, the department shall inform the |
| 406 |
complainant
of any right to a hearing pursuant to ss. 120.569 |
| 407 |
and
120.57. |
| 408 |
(2)(1) The
following acts constitute grounds for which the |
| 409 |
disciplinary actions in
subsection (4) (3) may be taken: |
| 410 |
(a) Violation
of any provision of s. 455.227(1). |
| 411 |
(b)1. Violation
of any provision of this part. |
| 412 |
2. Violation
of any lawful order or rule rendered or |
| 413 |
adopted by the department
or the council. |
| 414 |
3. Being
convicted of or pleading nolo contendere to a |
| 415 |
felony in any court in the
United States. |
| 416 |
4. Obtaining
a license or certification or any other |
| 417 |
order, ruling, or
authorization by means of fraud, |
| 418 |
misrepresentation, or
concealment of material facts. |
| 419 |
5. Committing
acts of gross misconduct or gross negligence |
| 420 |
in connection with the
profession. |
| 421 |
6. Contracting,
on behalf of an association, with any |
| 422 |
entity
in which the licensee has a financial interest that is |
| 423 |
not
disclosed. |
| 424 |
(3)(2) The
council shall specify by rule the acts or |
| 425 |
omissions that constitute
a violation of subsection (2) (1). |
| 426 |
(4)(3) When
the department finds any community association |
| 427 |
manager or firm
guilty of any of the grounds set forth in |
| 428 |
subsection (2)
(1), it may enter an order
imposing one or more |
| 429 |
of the following
penalties: |
| 430 |
(a) Denial
of an application for licensure. |
| 431 |
(b) Revocation
or suspension of a license. |
| 432 |
(c) Imposition
of an administrative fine not to exceed |
| 433 |
$5,000 for each count or
separate offense. |
| 434 |
(d) Issuance
of a reprimand. |
| 435 |
(e) Placement
of the community association manager on |
| 436 |
probation for a period of
time and subject to such conditions as |
| 437 |
the department specifies. |
| 438 |
(f) Restriction
of the authorized scope of practice by the |
| 439 |
community association
manager. |
| 440 |
(5)(4) The
department may shall
reissue the license of a |
| 441 |
disciplined community
association manager or firm upon |
| 442 |
certification by the
department that the disciplined person or |
| 443 |
firm
has complied with all of the terms and conditions set forth |
| 444 |
in the final order. |
| 445 |
Section
6. Paragraph (b) of subsection (1) and subsections |
| 446 |
(12) and (13) of section
718.111, Florida Statutes are amended, |
| 447 |
and paragraph (d) is added
to subsection (1) of that section, to |
| 448 |
read: |
| 449 |
718.111 The
association.-- |
| 450 |
(1) CORPORATE
ENTITY.-- |
| 451 |
(b) A
director of the association who is present at a |
| 452 |
meeting of its board at
which action on any corporate matter is |
| 453 |
taken shall be presumed to
have assented to the action taken |
| 454 |
unless he or she votes
against such action or abstains from |
| 455 |
voting
in respect thereto because of an asserted conflict of |
| 456 |
interest. A
director of the association who abstains from voting |
| 457 |
on any
action taken on any corporate matter shall be presumed to |
| 458 |
have
taken no position with regard to the action. Directors
may |
| 459 |
not vote by proxy or by
secret ballot at board meetings, except |
| 460 |
that officers may be
elected by secret ballot. A vote or |
| 461 |
abstention for each member
present shall be recorded in the |
| 462 |
minutes. |
| 463 |
(d) As
required by s. 617.0830, an officer, director, or |
| 464 |
agent
shall discharge his or her duties in good faith, with the |
| 465 |
care an
ordinarily prudent person in a like position would |
| 466 |
exercise
under similar circumstances, and in a manner he or she |
| 467 |
reasonably
believes to be in the interests of the association. |
| 468 |
An
officer, director, or agent shall be liable for monetary |
| 469 |
damages
as provided in s. 617.0834 if such officer, director, or |
| 470 |
agent
breached or failed to perform his or her duties and the |
| 471 |
breach
of, or failure to perform, his or her duties constitutes |
| 472 |
a
violation of criminal law as provided in s. 617.0834; |
| 473 |
constitutes
a transaction from which the officer or director |
| 474 |
derived
an improper personal benefit, either directly or |
| 475 |
indirectly;
or constitutes recklessness or an act or omission |
| 476 |
that
was in bad faith, with malicious purpose, or in a manner |
| 477 |
exhibiting
wanton and willful disregard of human rights, safety, |
| 478 |
or
property. |
| 479 |
(12) OFFICIAL
RECORDS.-- |
| 480 |
(a) From
the inception of the association, the association |
| 481 |
shall maintain each of the
following items, when applicable, |
| 482 |
which shall constitute the
official records of the association: |
| 483 |
1. A
copy of the plans, permits, warranties, and other |
| 484 |
items provided by the
developer pursuant to s. 718.301(4). |
| 485 |
2. A
photocopy of the recorded declaration of condominium |
| 486 |
of each condominium
operated by the association and of each |
| 487 |
amendment to each
declaration. |
| 488 |
3. A
photocopy of the recorded bylaws of the association |
| 489 |
and of each amendment to
the bylaws. |
| 490 |
4. A
certified copy of the articles of incorporation of |
| 491 |
the association, or other
documents creating the association, |
| 492 |
and of each amendment
thereto. |
| 493 |
5. A
copy of the current rules of the association. |
| 494 |
6. A
book or books which contain the minutes of all |
| 495 |
meetings of the
association, of the board of administration |
| 496 |
directors,
and of unit owners, which minutes shall be retained |
| 497 |
for a period of not less
than 7 years. |
| 498 |
7. A
current roster of all unit owners and their mailing |
| 499 |
addresses, unit
identifications, voting certifications, and, if |
| 500 |
known, telephone numbers.
The association shall also maintain |
| 501 |
the electronic mailing
addresses and the numbers designated by |
| 502 |
unit owners for receiving
notice sent by electronic transmission |
| 503 |
of those unit owners
consenting to receive notice by electronic |
| 504 |
transmission. The
electronic mailing addresses and numbers |
| 505 |
provided by unit owners to
receive notice by electronic |
| 506 |
transmission shall be
removed from association records when |
| 507 |
consent to receive notice
by electronic transmission is revoked. |
| 508 |
However, the association
is not liable for an erroneous |
| 509 |
disclosure of the
electronic mail address or the number for |
| 510 |
receiving electronic
transmission of notices. |
| 511 |
8. All
current insurance policies of the association and |
|